Report: States Pass Staggering Array of Anti-Choice Laws, Policies and Ballot Measures

Amie Newman

A new report from the Center for Reproductive Rights reviews the losses of women's rights throughout the states in the aftermath of health reform.

Live in Tennessee, Mississippi, Arizona, Missouri or Louisiana? The Center for Reproductive Rights (CRR) wants you to know that, with the implementation of health care reform in 2014, you will not have access to abortion coverage in your state’s health exchanges. These states have enacted insurance bans on abortion coverage. Five other states considered the bans and the CRR expects more to do so in 2011. But this is only the tip of the iceberg. The 2010 state legislative session has seen legislation forcing women to undergo “biased counseling” (and compelling health care providers to provide said counseling) which may contain medically inaccurate and misleading information, as well as mandatory ultrasound requirements. Some states have pushed anti-provider bills which seek to bar physicians who provide abortion care from a state’s malpractice compensation fund, and bills which force women to return at least twice to a provider before being deemed acceptable to have a legal abortion. States have sought to define zygotes and fertilized eggs as people; and punish women by barring any insurance coverage for abortion – even if the woman became pregnant as a result of rape.

The Center for Reproductive Rights (CRR) recently released its summary on the “major trends in anti-abortion legislation that emerged this year and of the onerous abortion restrictions enacted,” according to a statement from the organization.  “A First Look Back at the 2010 State Legislative Session,” (PDF) details alarming trends among the states to severely restrict access to legal abortion care.

Of particular consequence this past year has been the Nelson Amendment to the health care reform bill, which is responsible for the ban on abortion coverage in the health exchanges. As mentioned above, in response to the provision, five states have already passed similar state bans with more expected. CRR notes that anti-choice proponents’ argument over abortion access in federal health care reform efforts focused on outright false information about the importance of abortion access, as health care, for women in this country.

“…access to abortion is essential to women’s ability to protect their health and well-being throughout their reproductive years. It is also an extraordinarily common procedure: By the age of forty-five, approximately one in three women in this country will have had an abortion.  Health organizations including the World Health Organization, the American College of Obstetricians and Gynecologists, the American Public Health Association, and the Association of Reproductive Health Professionals recognize abortion as a critical part of comprehensive reproductive health care.”

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As CRR notes, the amendment practically invites anti-choice legislators to push for abortion bans in their state exchanges, so it’s no surprise they’ve taken the federal government up on the invitation.

Anti-choice restrictions in the 2011 state legislative session can not solely be attributed to the Nelson Amendment, of course. Not by a long shot. Anti-choice legislators have acted swiftly and unrelentingly to block their female residents from accessing legal abortion in a variety of ways, with harmful repercussions for both women and physicians.

Of the mandatory counseling and ultrasound requirements most popular this legislative session, CRR writes,

Ultrasound requirements are particularly demeaning to women, implying both that they do not understand their pregnancies and that they cannot make reasoned decisions without receiving information the state deems important. Women seeking abortions have carefully considered their options and life circumstances, and these requirements serve only as an attempt to shame them and make them feel guilty about their decisions.

For women who have wanted pregnancies or who have been victims of rape, incest, or abuse, these requirements can also result in unnecessary emotional suffering. These bills also interfere with the doctor/patient relationship, forcing physicians to give each woman “one size fits all” treatment, instead of allowing the physician to treat each patient individually according to his or her professional judgment.

There are certain states whose anti-choice bills are worthy of a special mention, in the CRR report, for both sheer number of bills – and their particularly onerous nature. Oklahoma has seen no less than eight attempts to block women’s access to abortion care in that state during the state’s 2010 legislative session. From a bill that would require physicians to “grill women” by asking them no less than 37 questions, forcing women seeking an abortion “to report their ‘marital status, age, race, education, number of live births, number of miscarriages, number of induced abortions, type of abortion and reason for the abortion,’” to a bill prohibiting any claims for damages “on the basis of wrongful life or wrongful birth,” Oklahoma has been relentless in their quest to criminalize women’s health care. Though Oklahoma’s ultrasound bill has a restraining order against it, in place, until 2011, women face a mountain of challenges when attempting to access abortion in that state still.

States from Arizona to Virginia, however, have also enacted abortion restrictions some with far-reaching consequences. In Utah, for example, a law was enacted which “imposes severe criminal penalties on pregnant women who cause the termination of their own pregnancies.” Yes, you read that right. It is now potentially illegal, in that state, for women to miscarry. Notes the CRR report,

“This law targets pregnant woman in significant and unintended ways,
subjecting women who experience miscarriages to potential criminal prosecution and inflicting criminal penalties on women who are already suffering such anguishing life circumstances that they would undertake desperate and dangerous measures to end their pregnancies.”

Perhaps the most puzzling and potentially harmful trend in the states in 2010 has been the push to confer personhood status upon fertilized eggs by amending state constitutions, using the ballot measure process. These initiatives – to define personhood from the moment of conception – have arisen from the Personhood movement which pushes what CRR calls an “extreme agenda” – an agenda that “would likely fail if proposed in the legislature.”

The problem with these proposals – aside from the obvious intent to criminalize abortion – is that they would also ban many forms of contraception and even reproductive technology like in-vitro fertilization. More than that, one can only imagine (and many, including CRR, have) what other laws which use the term “person” would be affected by such a change to a state’s constitution, creating utterly absurd but still disastrous consequences for women and their families.

This may be why these measures have not been very successful. Even fellow anti-choice organizations are steering clear of push for personhood. According to CRR:

At the start of 2010, “personhood” ballot initiative campaigns had begun to take shape in at least nine states. However, by August, only two proposals had received enough signatures to be placed on the ballot, in Colorado for the November 2010 election, and in Mississippi for November 2011.

Notably, in 2008, Colorado was the first state to consider a personhood initiative and voters overwhelmingly rejected it, 73 percent to 27 percent.

One ballot measure, in particular however, has been successful as of late. Last week, Alaska passed a parental notification ballot measure mandating that before a young woman can have an abortion, her physician must notify at least one parent. If the young woman lives in an abusive home? CRR says that the only way to avoid the notification process is for her to seek a court order or a signed statement from a law enforcement officer. The proposal also seeks to penalize physicians, notes Rewire’s Pamela Merritt, “…who perform abortions on minors without notification of the minor’s parents.” Sadly, notes Merritt, although most teens – including Alaskan teens –  already communicate with their parents, this government mandate now forces parental involvement even when there is good reason not to. Ultimately, it is the young women who fear repercussions from an abusive home environment, and take matters into their own hands, who will suffer.

It may seem as if the 2010 state legislative session floated away on a grey cloud when it comes to abortion laws, however the Center for Reproductive Rights and many pro-choice legislators and fellow advocates have been integral in successfully fighting or temporarily stopping some of the more restrictive ones.

News Abortion

Parental Notification Law Struck Down in Alaska

Michelle D. Anderson

"The reality is that some young women face desperate circumstances and potentially violent consequences if they are forced to bring their parents into their reproductive health decisions," said Janet Crepps, senior counsel at the Center for Reproductive Rights. "This law would have deprived these vulnerable women of their constitutional rights and put them at risk of serious harm."

The Alaska Supreme Court has struck down a state law requiring physicians to give the parents, guardians, or custodians of teenage minors a two-day notice before performing an abortion.

The court ruled that the parental notification law, which applies to teenagers younger than 18, violated the Alaska Constitution’s equal protection guarantee and could not be enforced.

The ruling stems from an Anchorage Superior Court decision that involved the case of Planned Parenthood of the Great Northwest and the Hawaiian Islands and physicians Dr. Jan Whitefield and Dr. Susan Lemagie against the State of Alaska and the notification law’s sponsors.

In the lower court ruling, a judge denied Planned Parenthood’s requested preliminary injunction against the law as a whole and went on to uphold the majority of the notification law.

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Planned Parenthood and the physicians had appealed that superior court ruling and asked for a reversal on both equal protection and privacy grounds.

Meanwhile, the State of Alaska and the notification law’s sponsors appealed the court’s decision to strike some of its provisions and the court’s ruling.

The notification law came about after an initiative approved by voters in August 2010. The law applied to “unemancipated, unmarried minors” younger than 18 seeking to terminate a pregnancy and only makes exceptions in documented cases of abuse and medical emergencies, such as one in which the pregnant person’s life is in danger.

Justice Daniel E. Winfree wrote in the majority opinion that the anti-choice law created “considerable tension between a minor’s fundamental privacy right to reproductive choice and how the State may advance its compelling interests.”

He said the law was discriminatory and that it could unjustifiably burden “the fundamental privacy rights only of minors seeking pregnancy termination, rather than [equally] to all pregnant minors.”

Chief Justice Craig Stowers dissented, arguing that the majority’s opinion “unjustifiably” departed from the Alaska Supreme Court’s prior approval of parental notification.

Stowers said the opinion “misapplies our equal protection case law by comparing two groups that are not similarly situated, and fails to consider how other states have handled similar questions related to parental notification laws.”

Center for Reproductive Rights (CRR) officials praised the court’s ruling, saying that Alaska’s vulnerable teenagers will now be relieved of additional burdensome hurdles in accessing abortion care. Attorneys from the American Civil Liberties Union, CRR, and Planned Parenthood represented plaintiffs in the case.

Janet Crepps, senior counsel at CRR, said in a statement that the “decision provides important protection to the safety and well-being of young women who need to end a pregnancy.”

“The reality is that some young women face desperate circumstances and potentially violent consequences if they are forced to bring their parents into their reproductive health decisions. This law would have deprived these vulnerable women of their constitutional rights and put them at risk of serious harm,” Crepps said.

CRR officials also noted that most young women seeking abortion care involve a parent, but some do not because they live an abusive or unsafe home.

The American Medical Association, the American College of Obstetricians and Gynecologists, and the Society for Adolescent Medicine have said minors’ access to confidential reproductive health services should be protected, according to CRR.

Analysis Politics

The 2016 Republican Platform Is Riddled With Conservative Abortion Myths

Ally Boguhn

Anti-choice activists and leaders have embraced the Republican platform, which relies on a series of falsehoods about reproductive health care.

Republicans voted to ratify their 2016 platform this week, codifying what many deem one of the most extreme platforms ever accepted by the party.

“Platforms are traditionally written by and for the party faithful and largely ignored by everyone else,” wrote the New York Times‘ editorial board Monday. “But this year, the Republicans are putting out an agenda that demands notice.”

“It is as though, rather than trying to reconcile Mr. Trump’s heretical views with conservative orthodoxy, the writers of the platform simply opted to go with the most extreme version of every position,” it continued. “Tailored to Mr. Trump’s impulsive bluster, this document lays bare just how much the G.O.P. is driven by a regressive, extremist inner core.”

Tucked away in the 66-page document accepted by Republicans as their official guide to “the Party’s principles and policies” are countless resolutions that seem to back up the Times‘ assertion that the platform is “the most extreme” ever put forth by the party, including: rolling back marriage equalitydeclaring pornography a “public health crisis”; and codifying the Hyde Amendment to permanently block federal funding for abortion.

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Anti-choice activists and leaders have embraced the platform, which the Susan B. Anthony List deemed the “Most Pro-life Platform Ever” in a press release upon the GOP’s Monday vote at the convention. “The Republican platform has always been strong when it comes to protecting unborn children, their mothers, and the conscience rights of pro-life Americans,” said the organization’s president, Marjorie Dannenfelser, in a statement. “The platform ratified today takes that stand from good to great.”  

Operation Rescue, an organization known for its radical tactics and links to violence, similarly declared the platform a “victory,” noting its inclusion of so-called personhood language, which could ban abortion and many forms of contraception. “We are celebrating today on the streets of Cleveland. We got everything we have asked for in the party platform,” said Troy Newman, president of Operation Rescue, in a statement posted to the group’s website.

But what stands out most in the Republicans’ document is the series of falsehoods and myths relied upon to push their conservative agenda. Here are just a few of the most egregious pieces of misinformation about abortion to be found within the pages of the 2016 platform:

Myth #1: Planned Parenthood Profits From Fetal Tissue Donations

Featured in multiple sections of the Republican platform is the tired and repeatedly debunked claim that Planned Parenthood profits from fetal tissue donations. In the subsection on “protecting human life,” the platform says:

We oppose the use of public funds to perform or promote abortion or to fund organizations, like Planned Parenthood, so long as they provide or refer for elective abortions or sell fetal body parts rather than provide healthcare. We urge all states and Congress to make it a crime to acquire, transfer, or sell fetal tissues from elective abortions for research, and we call on Congress to enact a ban on any sale of fetal body parts. In the meantime, we call on Congress to ban the practice of misleading women on so-called fetal harvesting consent forms, a fact revealed by a 2015 investigation. We will not fund or subsidize healthcare that includes abortion coverage.

Later in the document, under a section titled “Preserving Medicare and Medicaid,” the platform again asserts that abortion providers are selling “the body parts of aborted children”—presumably again referring to the controversy surrounding Planned Parenthood:

We respect the states’ authority and flexibility to exclude abortion providers from federal programs such as Medicaid and other healthcare and family planning programs so long as they continue to perform or refer for elective abortions or sell the body parts of aborted children.

The platform appears to reference the widely discredited videos produced by anti-choice organization Center for Medical Progress (CMP) as part of its smear campaign against Planned Parenthood. The videos were deceptively edited, as Rewire has extensively reported. CMP’s leader David Daleiden is currently under federal indictment for tampering with government documents in connection with obtaining the footage. Republicans have nonetheless steadfastly clung to the group’s claims in an effort to block access to reproductive health care.

Since CMP began releasing its videos last year, 13 state and three congressional inquiries into allegations based on the videos have turned up no evidence of wrongdoing on behalf of Planned Parenthood.

Dawn Laguens, executive vice president of Planned Parenthood Action Fund—which has endorsed Hillary Clinton—called the Republicans’ inclusion of CMP’s allegation in their platform “despicable” in a statement to the Huffington Post. “This isn’t just an attack on Planned Parenthood health centers,” said Laguens. “It’s an attack on the millions of patients who rely on Planned Parenthood each year for basic health care. It’s an attack on the brave doctors and nurses who have been facing down violent rhetoric and threats just to provide people with cancer screenings, birth control, and well-woman exams.”

Myth #2: The Supreme Court Struck Down “Commonsense” Laws About “Basic Health and Safety” in Whole Woman’s Health v. Hellerstedt

In the section focusing on the party’s opposition to abortion, the GOP’s platform also reaffirms their commitment to targeted regulation of abortion providers (TRAP) laws. According to the platform:

We salute the many states that now protect women and girls through laws requiring informed consent, parental consent, waiting periods, and clinic regulation. We condemn the Supreme Court’s activist decision in Whole Woman’s Health v. Hellerstedt striking down commonsense Texas laws providing for basic health and safety standards in abortion clinics.

The idea that TRAP laws, such as those struck down by the recent Supreme Court decision in Whole Woman’s Health, are solely for protecting women and keeping them safe is just as common among conservatives as it is false. However, as Rewire explained when Paul Ryan agreed with a nearly identical claim last week about Texas’ clinic regulations, “the provisions of the law in question were not about keeping anybody safe”:

As Justice Stephen Breyer noted in the opinion declaring them unconstitutional, “When directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.”

All the provisions actually did, according to Breyer on behalf of the Court majority, was put “a substantial obstacle in the path of women seeking a previability abortion,” and “constitute an undue burden on abortion access.”

Myth #3: 20-Week Abortion Bans Are Justified By “Current Medical Research” Suggesting That Is When a Fetus Can Feel Pain

The platform went on to point to Republicans’ Pain-Capable Unborn Child Protection Act, a piece of anti-choice legislation already passed in several states that, if approved in Congress, would create a federal ban on abortion after 20 weeks based on junk science claiming fetuses can feel pain at that point in pregnancy:

Over a dozen states have passed Pain-Capable Unborn Child Protection Acts prohibiting abortion after twenty weeks, the point at which current medical research shows that unborn babies can feel excruciating pain during abortions, and we call on Congress to enact the federal version.

Major medical groups and experts, however, agree that a fetus has not developed to the point where it can feel pain until the third trimester. According to a 2013 letter from the American Congress of Obstetricians and Gynecologists, “A rigorous 2005 scientific review of evidence published in the Journal of the American Medical Association (JAMA) concluded that fetal perception of pain is unlikely before the third trimester,” which begins around the 28th week of pregnancy. A 2010 review of the scientific evidence on the issue conducted by the British Royal College of Obstetricians and Gynaecologists similarly found “that the fetus cannot experience pain in any sense prior” to 24 weeks’ gestation.

Doctors who testify otherwise often have a history of anti-choice activism. For example, a letter read aloud during a debate over West Virginia’s ultimately failed 20-week abortion ban was drafted by Dr. Byron Calhoun, who was caught lying about the number of abortion-related complications he saw in Charleston.

Myth #4: Abortion “Endangers the Health and Well-being of Women”

In an apparent effort to criticize the Affordable Care Act for promoting “the notion of abortion as healthcare,” the platform baselessly claimed that abortion “endangers the health and well-being” of those who receive care:

Through Obamacare, the current Administration has promoted the notion of abortion as healthcare. We, however, affirm the dignity of women by protecting the sanctity of human life. Numerous studies have shown that abortion endangers the health and well-being of women, and we stand firmly against it.

Scientific evidence overwhelmingly supports the conclusion that abortion is safe. Research shows that a first-trimester abortion carries less than 0.05 percent risk of major complications, according to the Guttmacher Institute, and “pose[s] virtually no long-term risk of problems such as infertility, ectopic pregnancy, spontaneous abortion (miscarriage) or birth defect, and little or no risk of preterm or low-birth-weight deliveries.”

There is similarly no evidence to back up the GOP’s claim that abortion endangers the well-being of women. A 2008 study from the American Psychological Association’s Task Force on Mental Health and Abortion, an expansive analysis on current research regarding the issue, found that while those who have an abortion may experience a variety of feelings, “no evidence sufficient to support the claim that an observed association between abortion history and mental health was caused by the abortion per se, as opposed to other factors.”

As is the case for many of the anti-abortion myths perpetuated within the platform, many of the so-called experts who claim there is a link between abortion and mental illness are discredited anti-choice activists.

Myth #5: Mifepristone, a Drug Used for Medical Abortions, Is “Dangerous”

Both anti-choice activists and conservative Republicans have been vocal opponents of the Food and Drug Administration (FDA’s) March update to the regulations for mifepristone, a drug also known as Mifeprex and RU-486 that is used in medication abortions. However, in this year’s platform, the GOP goes a step further to claim that both the drug and its general approval by the FDA are “dangerous”:

We believe the FDA’s approval of Mifeprex, a dangerous abortifacient formerly known as RU-486, threatens women’s health, as does the agency’s endorsement of over-the-counter sales of powerful contraceptives without a physician’s recommendation. We support cutting federal and state funding for entities that endanger women’s health by performing abortions in a manner inconsistent with federal or state law.

Studies, however, have overwhelmingly found mifepristone to be safe. In fact, the Association of Reproductive Health Professionals says mifepristone “is safer than acetaminophen,” aspirin, and Viagra. When the FDA conducted a 2011 post-market study of those who have used the drug since it was approved by the agency, they found that more than 1.5 million women in the U.S. had used it to end a pregnancy, only 2,200 of whom had experienced an “adverse event” after.

The platform also appears to reference the FDA’s approval of making emergency contraception such as Plan B available over the counter, claiming that it too is a threat to women’s health. However, studies show that emergency contraception is safe and effective at preventing pregnancy. According to the World Health Organization, side effects are “uncommon and generally mild.”